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Monday, July 7, 2014

What's in a (beer) name?

Craft brewers hassled by lawyers over trademark issues: it happens all over the country. Whether the issue is the name of a beer (Foggy Noggin's "12th Man Skittles IPA" changed to "Cease and Desist Ale", Georgetown's "9-pound Hammer" changed to something that didn't infringe on a Vermont brewer's trademarked "No. 9") or the name of the business (Spokane's Northern Lights now No-Li), our corner of the country has seen its share of such squabbles.
A beer scribe with the Mid-Atlantic Brewing News, Alexander Mitchell, has written up a collection of similar stories from Maryland. He recounts the experience of the Baltimore brewer forced to rename its Ozzy Ale when sued by rocker Ozzy Osbourne; another Baltimore brewer, DuClaw, taking Left Hand Brewing to court when the Colorado brewer began selling Sawtooth Ale and Black Jack Porter in Maryland; and Ocean City brewer Danny Robinson, who had to change the name of his operation from Shorebilly Brewing to Backshore Brewing when a beach apparel maker asserted trademark rights over the Shorebilly name. Danny couldn't even use Robinson Brewing; some other Robinson got there first.
As plaintiffs like Texas A and M, which-incredible as it seems--owns the trademark to 12th Man, Ozzy Osbourne, and Shorebilly beach togs all illustrate, challenges can come from anywhere, not just from other brewers. Indeed, beer name overlap among brewers can sometimes come to a friendly resolution. A highlight of the recent Philly Beer Week was a keg of "Collaboration, Not Litigation", a Belgian strong dark ale. It was jointly brewed by California's Russian River and Colorado's Avery brewing companies after each realized that they were bringing ales called "Salvation" out around the same time.
Talking it over is one solution. Another is asking permission and maybe paying a bit for it. That's what the Seahawks did, paying Texas A and M for a license to use the 12th Man name. In this google-fied age, it's easy enough to run a search on any given phrase and see where else it pops up. For a draft-only beer,especially a one-off like Foggy Noggin's, it's hard to imagine any craft brewer acting like the Aggies down in Texas. The brewery that is thinking about bottling or canning something, designing a label and submitting it to the TTB and state regulators, that's a brewery that needs to be careful. Label review by the TTB does not look into whether anyone else is using a particular name; that falls under the US Patent and Trademark Office (USPTO). What they do is a whole 'nother story, which I will write on in a later post.